WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administration’s asylum policy “an Obama judge.” “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” (Photo by Chip Somodevilla/Getty Images)

An Old Lesson About Government Power, Learned Anew

R. Albert Mohler, Jr.
February 22, 2019

Just days ago, the United States Supreme Court handed down a unanimous decision that reestablished a very basic principle of constitutional self-government. USA Today reported this case with the headline, “High Court Caps Excessive Fines.” The fines are just a hint of what was at stake.

Richard Wolff of USA Today described the Supreme Court’s rule against states imposing excessive fines, fees, and forfeitures as criminal penalties: “The decision which united the court’s conservatives and liberals makes clear that the Eighth Amendment’s prohibition against excessive fines applies to states and localities as well as the federal government.”

These days, unanimous decisions by the Supreme Court are most often merely procedural—rarely decisions of great constitutional significance. Thus, in this heated season of judicial politics, this particular case marks an important move by the Supreme Court, acting in solidarity on an issue with massive implications for the American way of life.

The case dealt with the use of fines and financial penalties by federal, state, and local governments. This process, often known as civil asset forfeiture, seizes private property to fund portions of the government, especially those branches that deal with criminal investigation and prosecution. Sometimes, governments will seize assets that they then liquidate like a sports utility vehicle, a speedboat, or an airplane. That seizure, however, can only happen after prosecutors argue that those physical assets were used for criminal activities.

While forfeiture is simple enough to understand, cases involving the smuggling of drugs could involve millions of dollars in seized assets. Planes, boats, and fleets of SUVs can be seized by law enforcement agencies. Sometimes, however, law enforcement has apprehended assets of individuals who have yet to stand convicted of any criminal offense. In other cases, law enforcement uses broad definitions and reasoning to justify seizing assets of suspected criminals.

The Washington Post ran an editorial covering this case, stating, “The Supreme Court took one small step towards potentially redressing a big constitutional outrage, the pervasive and unjust forfeiture systems that states and localities have used to deprive even innocent people of their property.” The Supreme Court ruled unanimously for Tyson Timbs, an Indiana man who pleaded guilty to drug related charges and conspiracy to commit a theft. In addition to a year of home detention and five years of probation, the state seized Timbs’s $42,000 Land Rover, which he purchased with money he received from an insurance payout when his father died.

State authorities argued that Timbs’s Land Rover transported drugs, thereby justifying the seizure of this property. As The Washington Post reported, “An Indiana state court denied the forfeiture request, ruling that seizing Mr. Timbs’s $42,000 vehicle in connection to a crime for which the maximum criminal fine is $10,000 would be ‘grossly disproportionate’ and a violation of the Constitution’s ban on excessive fines.” The Supreme Court came to the very same conclusion and ordered that states and localities must observe the same constitutional limitations that operate for the United States government.

Justice Ginsburg wrote the majority opinion of the Supreme Court, stating, “For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history. Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill speech of political enemies.”

Justice Ginsburg used a very interesting and important phrase in her majority opinion: “Anglo-American history.” In other words, the Supreme Court grounded the justification of its decision in something older than the American constitutional tradition. Indeed, this “Anglo-American” terminology evokes the combined histories of Britain and the United States and places the Supreme Court’s decision in a long stream of precedent that stretches back to the 13th century.

On June 15th, 1215, English nobles forced King John to sign the document known as the Great Charter, or the Magna Carta. The Magna Carta established the principle of property rights—that the king or government could not wantonly seize property belonging to its citizens. This Great Charter marked a watershed moment in world history in which a king was forced to acknowledge that he did not have the right to seize private property without due cause. If the monarch needed the property, he needed to make recompense.

Thus, since the 13th century, the value of property rights has permeated the consciousness of, in the words of Winston Churchill, the English-speaking peoples. An 800-year tradition delimited the rights of governments from unjustly seizing property from its citizens.

The Supreme Court’s unanimous decision on Wednesday indicated that government entities violated this long-standing tradition—a tradition powerful enough to be cited by Justice Ginsburg in her majority opinion.

The biblical worldview, moreover, understands the true gravity of this recent case decided by the Supreme Court. An ephemeral, constitutional principle does not provide the grounding for human rights and human dignity. It is the imago Dei that enshrines human dignity. As creatures made in the image of God, every human bears an indelible mark of the Creator—a mark that demands respect and dignity.

Furthermore, the Scriptures extend the dignity of mankind to property rights. The eighth commandment prohibits stealing. Stated positively, it validates respect for private property. The eighth commandment pronounces a legal and moral condemnation against robbing someone of his or her personal property—a condemnation that flows from God’s design of the created order and how a civil society ought to function.

The Christian worldview also reveals the danger of power, especially unchecked power. Government authority, if left to its own devices, can quickly turn into despotic authority.

For this very reason, the decision handed down by the Supreme Court in the Indiana case marks an important moment in American judicial history. Liberal and conservative justices joined together in a unanimous decision to protect rights enshrined in a long-standing tradition—indeed, rights grounded in human dignity as creatures made in the image of God. The decision, as rooted in the long precedent cited, also affirms the dignity of private property.

Don’t miss another big lesson here. In this decision by the Supreme Court we see the remarkable achievement of constitutional self-government. One branch of government checked an overreach by another branch. Our constitutional form of government, through its highest court, thwarted the abuse of power by another branch. A government that respects the rights of individuals must necessarily be a limited government—a government with checks and balances in place that prohibit the misuse of authority.

In this moment of political peril and polarization, the question often arises: Can the American experiment in ordered liberty and self-government work? This is a legitimate question and one that has long been debated and tested since the nation’s founding. Yet, we ought to note when the system works—and it worked this week with the unanimous decision by the Supreme Court.

Any decision that brings together Justice Clarence Thomas with Justice Ruth Bader Ginsburg ought to have our attention. In this case, we witnessed justice prevail, individual rights protected, and the continued perseverance of constitutionally protected liberty.

R. Albert Mohler, Jr.

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